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The right to fall over

Odyssey January 2017

Falling over is something which tends to happen to us when we are very young or very old. As a child, our tears are normally quelled by a comforting hug and you normally end up with nothing more than a plaster on a slightly bloodied knee. However, to sustain a fall when you are older can be far more serious.

I was reminded of this recently when speaking to a doctor who specialised in palliative care for the elderly. She said that it was extremely difficult to get elderly people to admit that they had fallen. Their fear was that if they admit that they had sustained a fall, this would raise the question of whether or not they should continue to live independently or whether it was time for them to move into care. She went on to say that people were, of course, perfectly entitled to fall over so long as they could appreciate the risks that were involved when they fell. As the very idea that they had had a fall was denied, it became impossible to assess whether or not they understood the risks involved.

Health and social services can only become involved in a person’s care where they put their health at risk and they are unable to appreciate that risk. The law has made it crystal clear on numerous occasions that we are all sovereign when it comes to making decisions about our own bodies and welfare. We are perfectly entitled to refuse medical treatment without giving any rhyme or reason for doing so, so long as we have mental capacity. One of the key tests for assessing mental capacity is whether or not we are able to fully understand the nature and consequence of our actions.

So long as a person understands that if they fall they may sustain a serious injury, not be able to get up and may lie undiscovered on a floor for several hours, they are perfectly entitled to take the risk of falling over. Many of us may think that taking such a risk is foolish, however, the Mental Capacity Act makes it explicitly clear that we all have the right to be foolish. The carrying out of a foolish act does not in itself imply that a person lacks mental capacity.

The Mental Capacity Act 2005 has been law since 2007. The intention of the Act was to make clear that we all have certain inalienable rights which should not be lightly disregarded merely because of age, infirmity or what some may regard as irrational behaviour. There is no such thing as a reasonable patient.

Unfortunately, the protections provided by the Mental Capacity Act are not widely known or understood. One of the best ways of preserving your autonomy as you age is to have a health and welfare Lasting Power of Attorney in place. This allows you to appoint someone who can, for example, help you ensure that greater regard is paid as you grow older to your quality of life than to the number of times you may have fallen over.

Nigel George is a solicitor in the estates department of Prettys and is able to give advice on wills, trusts and inheritance tax planning. He is a member of the National Council of Palliative Care and a passionate advocate of the importance of quality of life as we all grow older.